Law report: Court's power to make residence order

May 1999 Re P (a child) Court of Appeal (Lady Justice Butler- Sloss, Lord Justice Thorpe and Lord Justice Robert Walker) 27 April 1999

SECTION 10(3) of the Children Act 1989 did not render the power of a judge to make a residence order of his own motion under section 8 of the Act subject to the restriction set out in section 9(3).

The Court of Appeal (Thorpe LJ dissenting) allowed the appeal of the child's liti-gation friend against the refusal to make a residence order in favour of the child's foster carers.

The child, who was four years old, had entered the care of the local authority under a care order made in the Family Proceedings Court on 10 September 1997. In May 1998 the authority applied in the county court for a freeing order. The application was supported by the child's mother but opposed by the paternal family which had united in support of an application by the paternal grandparents for a residence order.

The child's litigation friend opposed both applications, and proposed that the court should, of its own motion, discharge the child from care and grant a residence order to the foster carers with whom the child had lived for the previous two and a half years. That proposal being unacceptable to both the local authority and the grandparents, there was a contested hearing.

At the hearing counsel for the grandparents raised the preliminary objection that the combined effect of sections 9 and 10 of the Children Act 1989 was to exclude the foster parents as persons to whom the court could of its own motion grant a residence order. He submitted that they lacked the necessary locus standi under section 9(3) since they did not have the consent of the local authority, they were not related to the child, and the child had not lived with them for at least three years.

He further submitted that the court's power to make a residence order under section 8 of the Act of its own motion was specifically made subject to the restrictions in section 9 by virtue of the provisions of section 10(3). He relied on the decision in Re MD & TD (Minors) (No 2) [1994] Fam Law 489. The judge held that he was bound by that authority and concluded that it would therefore be vain to investigate the merits of the litigation friend's proposal. The litigation friend appealed.

Claire Wills-Goldingham (Willans, Cheltenham) for the litigation friend; Alex J. Ralton (Winterbothams, Stroud) for the paternal grandparents.

Lord Justice Robert Walker said that although the parliamentary history of the Children Act 1989 might cast some light on the question raised by the appeal, since no reference had been made to any material under the principle in Pepper v Hart [1993] AC 593 the court had to construe the Act in accordance with established principles.

Section 10(1) and (2) drew a clear distinction between section 8 orders made on an application by a person, and orders made by the court of its own motion. The court's powers under section 10(1) and (2), and would- be applicant's rights under section 10(4) to (8), were all "subject to the restrictions imposed by section 9".

In order to see whether there were any relevant restrictions it was necessary to look at section 9. The restriction in section 9(3) was, in striking contrast to all the other restrictions except that in the first part of section 9(2), procedural in character: it disqualified a particular class of person from from applying for leave under section 10(1)(a)(ii) or (2)(b).

There was no reason to read into section 9(3) a further substantive restriction which Parliament had not spelled out, since to do so would (a) ignore the distinction between section 8 orders made on application and those made by the court of its own motion; (b) ignore the different language used in other parts of section 9(2); and (c) curtail the court's powers in an area in which any doubt should be resolved in favour of flexibility.

The 1989 Act did not, accordingly, debar the judge from making a residence order in favour of the foster parents if they remained willing for such an order to be made, and if the judge took the view that that exceptional course was in the child's best long-term interests.

Kate O'Hanlon

Barrister